4 May 2021
We have voiced concerns over new guidance published by the Chief Coroner of England and Wales in relation to COVID-19 deaths.
The guidance has warned coroners against considering government policy in relation to COVID-19 deaths. This conflicts with well-established law surrounding deaths involving some state contribution.
The policy which is particularly shocking is in relation to the lack of PPE for front line workers (including NHS staff, carers and other key workers). There are also likely to be questions around how those most vulnerable members of society have been dealt with in care homes, along with the care workers who care for these individuals.
Since Hillsborough, we have been campaigning to have a duty of candour law to apply to all public bodies. We want to consider the lessons learned from the Hillsborough disaster and how they may help in dealing with the aftermath of Coronavirus.
Elkan Abrahamson, Director & Head of Major Inquiries said:
The guidance advising coroners not to consider public policy, particularly in relation to PPE, is a step which can only be seen as an attempt to avoid any criticism of the approach taken by the government and any potential breach of the human rights of those who have died and those who continue to be exposed to the risks.
The guidance passed down by the Chief Coroner suggests that inquests into COVID-19 deaths may not be held. When a coroner does hold an inquest, they are now being advised to limit the issues that can be explored.
It is absurd for the state to attempt to push COVID-19 deaths through the justice system quickly without any real investigation. An inquest is a key and crucial time for bereaved families to raise issues with Coroners as they begin to consider the many tragic deaths surrounding COVID-19. It is vitally important that these concerns are raised through the inquest process where appropriate and that in due course a public inquiry is established.
Inquests give bereaved families a voice and a chance to fight for accountability from the state. Families deserve to ask questions surrounding the circumstances of their loved ones death.
At an inquest, there are two main parts to a Coroner’s investigation:
- To answer four questions; who died, where they died, when they died and how the person died.
- To consider reports to prevent future deaths, which could be made at the beginning of an investigation.
A family may raise concerns to the Coroner that the state has contributed to the death of their loved one, for example by failing to take steps to protect them. Or, if the Government’s policy (or failure to implement policy) has contributed to their loved one’s death they may ask the Coroner to consider this within the investigation.
Where there is an argument that the state has contributed to the loss of life, there is an obligation on the state to carry out an enhanced investigation into that death. That investigation must comply with Article 2 of the European Convention on Human Rights and go further with the investigation exploring ‘in what circumstances’ the death occurred. A failure to carry out an investigation which complies with Article 2 has the potential to breach the Human Rights not only of the person who has lost their life, but of their families and potentially anybody else who may be affected by the Government’s failure.
There have been other cases where Coroners have not been able to hold an Inquest which complies with Article 2 and so an Inquiry has been launched to ensure that the investigation obligation on the state is met (The Grainger Inquiry and Manchester Arena Inquiry). In those cases, Inquests can be opened and adjourned pending the outcome of any Inquiry. An Inquiry would deal with those questions that need to be answered to ensure that ultimately bereaved families and the wider public have the opportunity to have their questions and concerns surrounding a death/deaths aired in public.
The concern surrounding COVID-19 deaths was raised in an article published by the Guardian with Lord Falconer, the Shadow Attorney General commenting:
I am very worried that an impression is being given that coroners will never investigate whether a failure to provide PPE led to the death of a key worker… This guidance may have an unduly restricting effect on the width of inquests arising out of Covid-19-related deaths.
Further, the Guardian’s article quotes Rinesh Parmar, the Chair of the Doctor’s Association UK:
The provision of PPE is so vital to the safety of health workers that to suggest coroners do not consider its supply in detail misses a big part of the picture. Only comprehensive inquests into the deaths of every NHS and care worker will give the bereaved the ability to ask questions and have the circumstances of their loved ones’ deaths fully explained.
It is our view, and the Chief Coroner has confirmed that any COVID-19 deaths which occur in prison or in a secure mental health ward, that Coroner’s would be required to hold an Inquest into that death.
The government has now agreed to open a statutory Public Inquiry. You can find out more about the next steps in the fight for justice for those who have lost loved ones to Covid-19. If you have any questions about the Covid Inquiry, core participation and what is involved, visit our Covid Inquiry Questions page.